Yes, OPM Can Modify Your Divorce Settlement Without Your Input

A report released yesterday by the Office of Personnel Management’s (OPM) Office of Inspector General (OIG) confirmed that OPM modified the rules regarding some federal employees’ annuity supplements.

The report was prompted by a letter of concern from the Federal Law Enforcement Officers Association (FLEOA), a professional association that claims as members 26,000 federal law enforcement officers across 65 agencies. FLEOA noted in its letter that OPM appeared recently to have “concluded that if a former spouse is entitled to a portion of a retired LEO’s Basic Annuity, that former spouse is also entitled to a portion of the former LEO’s Annuity Supplement, even if the divorce decree is silent on the issue.”

FLEOA noted the change was not made pursuant to any judicial, Congressional, or MSPB order and was made without notice. OPM also made the policy retroactive, thus creating a debt owed on the part of the annuitant.

The investigation conducted by OPM-OIG confirmed these suspicions.

According to the report, “In July 2016, OPM started applying the state court-ordered marital share to both the Basic Annuity and the Annuity Supplement, even in cases where the state court order did not address the Annuity Supplement.”

OIG’s strongly-worded report also confirmed that the change was sudden, noting that “retirees and the former spouses learned of OPM’s decision only when their annuity amounts changed – many years after the parties had divorced, after a state court had ordered a former spouse’s marital share, and after OPM had accepted the state court order for processing.”

The report concludes, “OPM’s new policy has been causing immediate financial disruption to annuitants. Moreover, OPM’s new policy improperly changes previously litigated final state court orders without notice to annuitants.”

The report includes a series of recommendations. Specifically:

That OPM cease applying the state court-ordered marital share to Annuity Supplements unless those court orders expressly and unequivocally identify the Annuity Supplement to be apportioned.

That OPM take all appropriate steps to make whole those retired LEOs and any other annuitants affected by this re-interpretation.

That OPM determine whether it has a legal requirement to make its updated guidance, including Retirement and Insurance Letters, publicly available.

The IG Report recommended:

That OPM cease applying the state court-ordered marital share to Annuity Supplements unless those court orders expressly and unequivocally identify the Annuity Supplement to be apportioned.

That OPM take all appropriate steps to make whole those retired LEOs and any other annuitants affected by this re-interpretation.

That OPM determine whether it has a legal requirement to make its updated guidance, including Retirement and Insurance Letters, publicly available.

OPM did not concur with any of the recommendations, stating that the modified policy more accurately reflects the intended application of the law.

Nathan R. Catura, National President of FLEOA, said in its letter to OPM that it was “absolutely breathtaking that an agency which has repeatedly failed to meet such basic obligations as protecting the personal information of federal employees or processing retirement claims in a ‘timely’ fashion could find a new way to harm federal law enforcement officers.”

Catura noted OPM’s request that the OIG not make the report public for fear the report could be used to appeal pending agency MSPB litigation.

"To those who may be barely making those ends meet now, your agency’s decision to retroactively slash their earned annuity supplement comes across as arbitrary, capricious, and shows a complete disregard for the interests of the federal retirees that it is OPM’s responsibility to safeguard," said Catura.